International Law Justice as a Commodity

7/30/2019 International Law Justice as a Commodity

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International law: justice as a commodity

International law now has some jurisdiction over dictators and war

criminals, but not yet over economic crime: it reflects the balance of world

power and is just as cowardly as the states that make it.

BY NURI ALBALA

INTERNATIONAL law has made remarkable progress in a fairly

short space of time. States have adopted instruments and founded

international bodies to punish perpetrators of war crimes and

human rights violations. They have introduced rules and established

international courts to protect free trade. But what action have they

taken to prosecute economic crimes? None.

There are courts to settle disputes between states, such as the

International Court of Justice (ICJ) at The Hague, and courts in

which citizens can call states to account for human rights violations,

such as the Inter-American Court of Human Rights and the

European Court of Human Rights. Fifty years after the Nuremberg

Tribunal, we at last have international criminal tribunals for Rwanda

and the former Yugoslavia and, as of March this year, anInternational Criminal Court (ICC) (1). Many countries have agreed

to accede to international conventions on genocide, crimes against

humanity and the imprescriptibility of such crimes, and some, like

Argentina, have gone so far as to repeal existing amnesty laws. Some

lawyers even consider that crimes against humanity ought to be open

to prosecution anywhere, because of the peculiar nature of such

crimes (2). This is bad news for dictators, who are beginning to

realise that they will not always be immune from prosecution, evenin their own countries.

But these advances do not alter the fact that dictators depend for

their survival on support from national and international economic

groups. These groups are the real beneficiaries; the despots merely



do their dirty work. Most of the assassins in Chile, Nigeria and

Burma are faithful servants, and their kind masters, who welcome

advances in international law, find it quite natural, perhaps

inevitable, to let them be. But the crimes that cause the greatest

suffering are economic crimes.

International law and institutions are not uninterested in the

activities of economic operators, but their interest shows a certain

bias. Almost 10 years ago, in 1994, an international court, the

Dispute Settlement Body (DSB), was quietly established within the

World Trade Organisation (WTO) to decide cases brought against

states for breach of the sacrosanct principle of free trade and

competition (3). But most crimes committed by transnationalcorporations go unpunished. For example, the actions for forced

labour brought by Burmese workers against TotalFinaElf in Belgium

are a dead letter.

Companies are more or less immune because there is no

international legal definition of economic crimes. Besides,

international law is rarely concerned with corporate bodies, which

are expressly excluded from the jurisdiction of the ICC. So the only remedy for crime is action against the state - either the state that

gave the order or the state in whose territory the crime was

committed. The problem is that the host state often feels under no

obligation to comply with international conventions. Burma, for

example, has not ratified any of the conventions in question. And

ostensibly law-abiding democratic states where offending firms have

their registered offices are afraid the firms will relocate if they adopt

regulations that entail too much trouble or expense (4).

There is a simple reason for this imbalance in international law.

People in many countries are making it known that they want

perpetrators of crimes against humanity to be punished. And,

whether they like it or not, governments are having to respond to



popular demand and establish appropriate judicial institutions. But

the big national and transnational corporations insist that trade

must be liberalised and states must be subject to the rules on

liberalisation. And states, which normally attach so much

importance to sovereignty and freedom of action, and refuse to be

judged on their human rights record, are meekly agreeing to be

brought to book for breach of the rules on free trade.

Meanwhile the forces that call for crimes committed by transnational

corporations to be defined and prosecuted are not, or not yet, strong

enough for our rulers to feel justified in taking any steps in that

direction.

Much is written about the rule of law and even about establishing the

rule of international law, but the concept of law itself is rarely

questioned. The law is not a fixed quantity: laws depend on the

circumstances in which they arise, and they may change as those

who promulgate them and those who interpret, apply and use them

change. Karl Marx considered that the law reflects the balance of

power in society at a given time. Human institutions (courts,

tribunals) are required to give effect to something that is itself aproduct of human institutions - a truism that has not been given

enough thought. During a visit to Africa in October, President

Jacques Chirac said that legal immigration should be encouraged (5).

That means that the French government will define what is legal, as

it wishes and in its own way, and then pride itself on complying with

the legal requirements.

So the law is not sacred, although the obligation to obey has been amark of progress in human society since the age of enlightenment.

There are hierarchies within the law, and the whole elaborate edifice

of international commercial law constructed over the past 10 years

means that trade and trade regulations are now the general rule and

social or environmental protection the exception (6). In law an



instrument often has to be interpreted before it can be applied, and

exceptions (in this case, social protection, respect for the

environment, cultural diversity) are interpreted extremely strictly so

as to have the least possible impact on the general rule - free trade

and industry.

International law is mostly made by governments, which pay scant

respect to the separation of legislative, executive and judicial powers.

Treaties are negotiated exclusively by the executive. The citizens’

representatives in parliament intervene after the event to ratify or

refuse to ratify the convention, but they cannot change its terms (7).

So rules that are to be internationally applicable in law are dictated

by the strongest states and the power of the transnationals. And if the WTO and the DSB exercise so much power while refusing to

comply with provisions protecting the rights of the people, it must be

because states are resolved that they should and because our rulers

are more willing to submit to the laws imposed by transnational

trade than the law governing international relations.

Can people change the course of international law and regain their

power of decision? Perhaps. They must first recover the law-makingtradition that has been an essential part of the democratic heritage

since 1789. Fundamental rights are a powerful weapon capable, if

properly understood, of arresting the development of a system of law

based entirely on the primacy of trade and profit. It is a civic duty to

assert these rights, to rebel against resignation, the erosion of

democracy and the idea that might (or wealth) is right. Tenants’

associations are well aware of the support they derive from the

declar ation, in the 1966 UN Covenant on economic, social andcultural rights, that everyone has a right to housing.

Citizens can also make their presence felt by moving into many areas

from which they cannot be excluded, by speaking up at the major G8

or WTO summits or counter-summits (8) and in bodies that have



some power and independence. The UN Human Rights

Subcommittee composed of independent experts, with assist ance

from NGOs, has produced a number of international conventions

subsequently adopted by states, and drew up and submitted in

August draft norms on the responsibilities of transnational

corporations (9).

The United Nations is still a place where progress can be made in the

interests of the people. We look forward to the day when it is more

democratic and can make an even greater contribution.

International Law Justice as a Commodity

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